| Smith v City of Mount Vernon |
| 2012 NY Slip Op 08507 [101 AD3d 847] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Gladys Smith, Respondent, v City of Mount Vernon,Appellant. |
—[*1] Spar & Bernstein, P.C., New York, N.Y. (Jared R. Cooper of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered September 16, 2011, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On August 12, 2009, the plaintiff, then 64 years old, allegedly tripped and fell over a crackedsidewalk flag while walking on North Third Avenue in Mount Vernon. She commenced thisaction against the defendant, the City of Mount Vernon, to recover damages for her allegedinjuries. After the plaintiff filed her note of issue and certificate of readiness, the City moved forsummary judgment dismissing the complaint on the ground that it did not receive prior writtennotice of the defective condition which allegedly caused the plaintiff to trip and fall. TheSupreme Court denied the motion, concluding that the City did not meet its prima facie burden.
On its motion for summary judgment dismissing the complaint, the City met its prima facieburden of establishing its entitlement to judgment as a matter of law by providing evidence that itdid not receive prior written notice of the defective sidewalk flag upon which the plaintiffallegedly tripped, as required pursuant to section 265 of the Charter of the City of Mount Vernon(see Wiley v Incorporated Vil. ofGarden City, 91 AD3d 764, 765 [2012]; LiFrieri v Town of Smithtown, 72 AD3d 750, 752 [2010]; Koehler v Incorporated Vil. ofLindenhurst, 42 AD3d 438 [2007]; Silburn v City of Poughkeepsie, 28 AD3d 468, 469 [2006]). Insupport of its motion, the City submitted, among other things, the affidavit and a transcript of thedeposition testimony of Anthony Amiano, a skilled laborer employed by the City for 26 yearswhose job duties included, inter alia, handling all notices of claim received by the City, checkingthe City's records for prior notices, and inspecting the areas complained of in the notices ofclaim. Amiano averred and testified that, upon searching the records of the Commissioner ofPublic Works, which were maintained at City Hall, he found no records of prior notices orcomplaints pertaining to the area where the plaintiff allegedly tripped and fell. Amiano alsoaverred that the City did not perform any work in that area. Contrary to the plaintiff's contention,Amiano's affidavit and deposition testimony were sufficient to satisfy the City's initial burden inmoving for summary judgment. Consequently, the City demonstrated, prima facie, its entitlementto judgment as a matter of law.[*2]
In opposition, the plaintiff failed to raise a triable issue offact. Contrary to the plaintiff's contention, even though Amiano's title was that of skilled laborer,his testimony and affidavit sufficiently demonstrated that the City did not receive prior writtennotice (see Wiley v Incorporated Vil. ofGarden City, 91 AD3d 764 [2012]; Spanos v Town of Clarkstown, 81 AD3d 711,712 [2011]; Foley v County of Suffolk, 80 AD3d658, 659-660 [2011]; Richards vIncorporated Vil. of Rockville Ctr., 80 AD3d 594, 594 [2011]). Further, GeneralMunicipal Law § 50-g (2) does not require that the individual who performs a search of amunicipality's prior written notice records be the same person who is designated by statute,charter, or local law to maintain those records (see General Municipal Law § 50-g[2]; see e.g. Wiley v Incorporated Vil. ofGarden City, 91 AD3d 764 [2012]; Foley v County of Suffolk, 80 AD3d at659-660).
Moreover, the plaintiff failed to raise a triable issue of fact as to whether the affirmativenegligence exception to the statutory rule requiring prior written notice was applicable to thisaction. She did not provide any evidence tending to show that the City performed any work in thearea which immediately resulted in the creation of the subject crack in the sidewalk flag (see Yarborough v City of New York,10 NY3d 726, 728 [2008]; Oboler vCity of New York, 8 NY3d 888, 889 [2007]; Wiley v Incorporated Vil. of GardenCity, 91 AD3d at 766; Brown vCounty of Suffolk, 89 AD3d 661, 661 [2011]; Richards v Incorporated Vil. ofRockville Ctr., 80 AD3d at 595; Jason v Town of N. Hempstead, 61 AD3d 936, 937 [2009]). Anytestimony by Amiano that the crack could have been caused over time by water erosion and theapplication of salt to the sidewalk following snowstorms was speculative and did not raise atriable issue of fact as to whether the City affirmatively caused the crack, thereby triggering theaffirmative negligence exception.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the City's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Lott, Austin and Cohen, JJ., concur.